New coalition of school & public works agencies signs on for CEQA reform

While Democratic leaders have spent much of January sending strong signals about their intent to make changes to the California Environmental Quality Act, the debate in Sacramento has so far lacked specifics about exactly what parts of CEQA are under review.

That began to change this week when a new alliance of public agencies known as the Public Works Coalition—which together represent nearly every school, college, university, city, county and special district in California—submitted a letter to the governor and members of the Senate and Assembly highlighting the challenges public agencies encounter when implementing CEQA.

To address what it calls “misuse and abuse” of the law, the letter, signed by influential stakeholders ranging from the California School Boards Association and Association of California Healthcare Districts to the California Special Districts Association, also identifies four proposed changes to CEQA its members could support. (More on the proposals below, which appear to fall somewhere in between the the limited changes environmentalists have suggested and the more far-reaching reforms proposed last year by Sen. Michael Rubio.)

“The [Public Works Coalition] and its members have a large stake in any proposed CEQA legislation,” the letter says, pointing out that the group’s members are often the “lead agencies” responsible for actually conducting the CEQA review required by the law.

“It is widely recognized that many of CEQA's key requirements are fundamentally uncertain,” the letter says. “No matter how much time and how many resources have been invested to disclose all significant project impacts, feasible mitigation, and, when required, feasible project alternatives, a project opponent can craft arguments as to why a lead agency failed to fully comply with CEQA. As a result, it is very difficult for lead agencies to effectively execute CEQA decisions that can be upheld in court if they are challenged."

The Public Works Coalition has proposed four different legislative changes to address these issues:

Defining CEQA’s rules around “cumulative impacts” – When considering a project, CEQA requires a lead agency to review all of the cumulative effects of past, present, and future projects that might impact it. “Unfortunately, there are no clear standards as to the scope of such a list,” the PWC says, and challengers can stop projects in their tracks by taking the agency to court over anything they miss. PWC proposes tightening up the definition of “future” projects—and limiting the required analysis to projects that have actually applied for approval at the time, along with projects included in local and regional plans. The group also proposes eliminating the uncertainty around how an agency should treat the significance of an impact that contributes in only “a very small way” to a large existing environmental issue.

Clarifying the law’s definition of a “significant” environmental impact – Public projects are often put on hold while courts review whether they will have a “significant” impact on the environment, a definition the law requires lead agencies to determine themselves. PWC proposes a bit more clarity, offering this definition of “significance:” “A change in the environment is not a significant effect if the change complies with a regulatory standard adopted through a public review process for the purpose of environmental protection.”

Making it clearer what’s exempt from the law – CEQA’s broadly-written rules can leave agencies vulnerable to legal challenges over activities they believed were exempt from the law. The law exempts some activities from CEQA suits, but not when there is a “reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” PWC would like to clear up what CEQA means by “unusual circumstances”—changing the law so challengers would need to show “substantial evidence” an agency was mistaken in believing it was exempt from the law.

Closing the door on last-minute lawsuits – CEQA requires the planning documents produced under the law to be circulated publicly for review and comment before they can be approved. Under current law, though, potential challenges can take a project to court over issues they haven’t raised during this review period. This leaves projects legally vulnerable long after PWC believes they should be. PWC proposes amending CEQA to ensure only those issues raised during the public comment period can be raised in court.